Ravi S/O Shankarrao Kale vs The State Of Maharashtra Thr. ...
2015 Latest Caselaw 420 Bom

                                                                               apeal306.13
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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR.




                                                     
                          CRIMINAL APPEAL No. 306 OF 2013


    Ravi s/o Shankarrao Kale,




                                                    
    aged about 24 years,
    r/o Maroti Ward, Arvi,
    District Wardha.
    (In Jail)                                            ....APPELLANT.




                                          
                              VERSUS
                               
    The State of Maharashtra,
                              
    through P.S.O. Arvi,
    District Wardha.                                      ....  RESPONDENT.


                                     ....
      


    Mr. Mahesh Rai Advocate for the appellant.
    Mr. A.K. Bangadkar, Addl. Public Prosecutor, for the Respondent.
   



                                     .....


                                       CORAM : V.M. DESHPANDE, J.





                                       RESERVED ON : 08.09.2015.

                                       PRONOUNCED ON :            12.10.2015.





    JUDGMENT :

The present appeal is directed against the judgment

and order of conviction passed by the learned Additional Sessions

Judge, Wardha, in Sessions Case No. 52 of 2012 on 09.4.2013,

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thereby convicting the present appellant for the offence

punishable under Section 376 (2)(f) read with Section 511 of

Indian Penal Code and sentencing him to suffer rigorous

imprisonment for five years and to pay fine of Rs.5,000/-, in

default to suffer rigorous imprisonment for three months. The trial

Court also directed that on payment of fine, Rs.4,500/- be paid to

the prosecutrix by way of compensation.

2.

The prosecution case, as it was unfolded during the

course of trial, is narrated as under :

(a) Kailash Kurhade (P.W.2) is the first informant. He has

lodged oral report with police station Arvi on 10.2.2012. The

report is at Ex.26 whereas printed F.I.R. is at Ex.27.

(b) The first informant was discharging his duties as

Chowkidar in a school at Arvi known as Gandhi Vidyalaya. His

duty hours used to be from 6 p.m. to 8 O' clock of next day

morning. He used to take round of the school premises while on

duty. There is no compound wall to the school.

(c) On 10.2.2012 the first informant joined his duties at 6

O' clock in the evening. He started taking round of the school. At

about 7-30 p.m. in front of Chemistry Laboratory of the school he

noticed one person lying on the ground. His face was towards the

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floor. He was having shirt on his person. However, his pant and

under garment, i.e. nicker, were removed up to his knees.

Therefore, the first informant went there and found that the said

man was sleeping on a minor girl. Nicker of the minor girl was

also removed up to her knees and he was trying to insert his

private part into the private part of minor girl. Therefore, the first

informant caught hold the collar and lifted the said person from

the body of the minor girl. The minor girl was the daughter of the

peon working in Anna Bhau Sathe Prathmik Shala. The age of the

girl was five years. The said person tried to give some jerks to

the first informant. Therefore, he called for help. One person by

name Sudhakar Kangali came there and with his help

apprehended the said person, who is appellant before this Court.

Then both of them took the appellant and the minor girl to the

police station where Kailash narrated the entire incident to police.

(d) P.W.3 Dashrath Dhurve, who on the relevant day was

on duty at police station Arvi, registered the oral report of the first

informant and registered the offence vide Crime No. 32/12. He

visited the spot of incident along with the first informant. The spot

was shown by the first informant. In presence of panch witnesses,

panchanama was drawn which is at Ex.20. He arrested the

accused under arrest panchanama (Ex.30);. He seized the clothes

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of the prosecutrix under seizure panchanama (Ex.21). Clothes of

the accused were also seized under seizure panchanama (Ex.22).

(e) The investigation was then handed over to P.W.8 Yunis

Lakade. He recorded statements of witnesses. He collected

medical papers of the prosecutrix and also sent Muddemal to

chemical analyser along with forwarding letter Ex.46. Reports of

chemical analyser were received which are at Exs.48 and 49.

After completion of usual investigation, the Investigating Officer

presented charge-sheet in the Court of law.

3. After committal of the case to the Court of Sessions, it

was registered as Sessions Case No. 52/12. The learned

Additional Sessions Judge framed a charge against the appellant

under Ex.5 for the offence punishable under Section 376(2)(f) of

Indian Penal Code and also under Section 376 read with Section

511 of Indian Penal Code. The appellant abjured his guilt and

claimed for his trial.

4. In order to bring home guilt of the appellant,

prosecution has examined following witnesses. They are -

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Sr.No. Name & witness No. Status of witness

1. Pawan Bele (P.W.1) Panch witness to the spot

panchanama (Ex.20), witness to seizure of clothes of prosecutrix Ex.21, witness to seizure of clothes of accused Ex.22 and also witness

to seizure of blood samples, semen sample, pubic hair and nail clipping of accused Ex.23.

                                                 
    2.            Kailash Kurhade (P.W.2)              First   informant   and   lodging   of 
                                   ig                  F.I.R. (Ex.26).

3. Dashrath Chindhuji Dhurve Registered the F.I.R. and drew spot (P.W.3) panchanama (Ex.20)

4. Mamta Pravin Mother of the prosecutrix.

5. Sudhakar Mahadeorao Immediately reached the spot of Kangali (P.W.5) incident on the call given by the first informant and a apprehended the accused.

6. Dr.Jaishri Gathe P.W.6 Examined the prosecutrix and issued certificate Ex.41.

    7.            Pravin  P.W.7                        Father of prosecutrix





    8.            Yunis Lakade P.W.8                   I.O. who filed charge-sheet
    9.            Dr. Pravin Thakare P.W.9             Examined   the   accused   and   issued 
                                                       certificate Ex.53.

5. After full-dress trial, the learned Judge of the trial

Court found the appellant/accused guilty of the offence

punishable under Section 376(2)(f) read with Section 511 of Indian

Penal Code and sentenced him, as stated in opening paragraph of

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this judgment.

6. I have heard Shri Mahesh Rai, learned counsel

for the appellant and learned A.P.P. With their able

assistance I have gone through the record and proceedings

and the notes of evidence. Both the learned counsel articulated

their submissions in support of their respective prayers.

7. Pravin (P.W.7), father of the prosecutrix, deposed before

the Court that the date of birth of the victim is 23.9.2007. This

particular assertion is not challenged by the defence when he

was under cross-examination. Thus, on the date of incident, i.e.

on 10.2.2012, the prosecutrix was aged about 5 years.

8. Mamta (P.W.4), mother of prosecutrix, stated from

the witness-box that on the date of incident in the evening

prosecutrix was playing in the court-yard of her house. At about

5-30 p.m. when the light was off, Mamta went inside the house

for lighting the lamp in the kitchen. Thereafter, she noticed that

the prosecutrix was not present in the court-yard. Therefore, in

the search of prosecutrix she went to her neighbour's house,

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which is described as Pallavi's house by Mamta in her evidence. It

was told to her that time by the mother of Pallavi that prosecutrix

and Pallavi had gone along with Ravi, the present appellant, to

bring book. In search of prosecutrix, Mamta went to the house

of Pallavi for two-three times but she did not find her daughter

there. Mamta further deposed that at about 10-30 p.m. one

Chowkidar from Gandhi Vidyalaya came to her house. This

Chowkidar is obviously P.W.2 Kailash.

ig Kailash informed Mamta,

mother of prosecutrix, that her daughter is in the police station.

She then went to the police station.

On the next day, the victim was referred to the

hospital for her medical examination along with a lady police

constable. Prior to medical examination of victim, the medical

officer has obtained consent of Mamta (P.W.4), which is at Ex.32.

9. Dr.Jaishri Gathe (P.W.6) was attached to Civil

Hospital, Wardha. On 10.2.2012, after obtaining the consent of

Mamta (P.W.4)- the mother of prosecutrix, she examined the

victim and found no injuries on any part of the body of the

prosecutrix. Hymen was also intact and secondary sexual

characters were not developed. Accordingly, she issued medical

certificate (Ex.41).

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10. In the present case, the victim was not examined by

the prosecution. The case of prosecution cannot be thrown in

dust-bin on that count because the age of the prosecutrix is only

five years. The medical officer, who examined the victim, has

opined that no rape was committed on the prosecutrix. Therefore,

the question that this Court has to decide is, whether the

appellant could be convicted for making an attempt to commit

sexual intercourse on a minor girl?

11. An attempt is an overt act immediately connected

with the commission of an offence and forming the part of series

of act which, if not interrupted or frustrated or abandoned, would

result in the commission of a complete offence. Mere intention

not followed by an act cannot constitute an offence, the

preparation is a mental act which follow up some action to do a

particular thing. Preparation consist in devising or arranging the

means or measures necessary for the commission of the offence.

Let us now examine the evidence of the prosecution in the light of

the above.

12. Unchallenged evidence of Mamta (P.W.4) shows that

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she had been to Pallavi's house in search of her daughter when

she noticed that her daughter was not there in the court-yard and

that time it was revealed to her that her daughter is taken away

by the appellant. In view of this unchallenged version, it is

established that the prosecutrix was in the company of the

appellant. There cannot be any fixed point by which it could be

said that at a particular point of time, intention of a person to

commit an offence has crept in his mind. Such intention will have

to be gathered from the subsequent acts.

13. P.W.2 Kailash is the Chowkidar in Gandhi Vidyalaya,

Arvi. His duty hours used to be from 6 p.m. to 8 O' clock in the

morning of next day. His evidence discloses that there is no

compound wall. Ex.20 spot panchanama also does not recite

about having the compound wall. As per evidence of Kailash, to

prevent trespass in the premises, it is his duty to keep a watch.

14. P.W2. Kailash deposed in his evidence that on the

date of incident, i.e. 10.2.2012, he reported duty at 6 p.m. His

taking rounds in the premises is most natural. Since he is a

Chowkidar, it is his duty to keep vigil eye on the premises. The

evidence of this witness further reveals that while he was taking

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third round, he noticed in the source of light that one person was

sleeping facing the ground. The said invited the attention of this

witness and, therefore, he immediately reached there. On

reaching there, this witness noticed that the said person, the

appellant, was having his pant and nicker removed up to his

knee. At the same time, Kailash (P.W.2) also noticed one minor

girl was lying on the floor beneath the appellant. This witness

further noticed the private part of that man (appellant) in an

erected position. By removing his pant and nicker up to knee, the

appellant exposed his private part. Kailash (P.W.2) also noticed

that the nicker of the girl was also removed up to her knees. With

erected position of private part when the appellant was on the

body the minor girl, thus it is amply clear that the appellant has

travelled beyond the point of preparation and has tried to commit

rape on the girl. However, the said act was frustrated and could

not be completed because of the intervention at the right point of

time by P.W.2 Kailash. Had Kailash been not there at that

particular point of time, the act of commission of rape would have

been completed.

15. The evidence of this prosecution witness is

challenged by the learned counsel for the appellant on the ground

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that Kailash (P.W.2) did not report the said matter to the School

Head Master. However, cross-examination of this witness

discloses that on the date of incident, the Head Master was not

available in the town and on the next day the matter was reported

to the HeadMaster.

16. Dr. Pravain Thakare (P.W.9), who also examined the

witness Kailash (P.W.2), deposed that the ig injury found on the

person of Kailash was simple in nature. Certificate issued by the

medical officer to this effect is at Ex.54. This corroborates the

version of P.W.2 Kailash when he says that the accused tried to

rescue himself from his clutches. Therefore, pain and tenderness

as noticed by the medical officer on the left hand of Kailash is

most natural. In that view of the matter, the submission of

learned counsel for the appellant that the appellant is falsely

implicated in the crime has no force.

17. The version of Kailash (P.W.2) that he caught hold of

the appellant on the spot itself is corroborated by P.W.5 Sudhakar

Kangali. This witness reached the spot immediately when he

heard the call given by Kailash. Thus, the evidence of Kailash

(P.W.2) and Sudhakar (P.W.5) are corroborative to each other on

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the aspect of taking the appellant to the police station along with

the victim. The evidence of both these witnesses inspire

confidence and their evidence is free from exaggeration. There is

nothing on record to show that these two prosecution witnesses

were having any enmity with the appellant for his false

implication. In that view of the matter, I see no reason to interfere

with the findings recorded by the learned Judge of the trial Court.

The appeal deserves to be dismissed.

18. The appeal is dismissed.

JUDGE

/TA/